in the united states district court for ... - new york lawyer

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Annette M. Montalvo, CSR, RDR, CRROfficial Court Reporter

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,Plaintiff,

vs.STATE OF NEW YORK,

Defendant.-----------------------------RAYMOND O'TOOLE, et al.,

Plaintiffs,vs.ANDREW M. CUOMO, in hisofficial capacity as Governorof the State of New York, etal.,

Defendants.

))))))))))))))

Civil ActionNo. 13-4165 (NGG)

CIVIL HEARINGBrooklyn, New YorkDate: March 22, 2017Time: 11:00 a.m.

Civil ActionNo. 13-4166 (NGG)

___________________________________________________________

TRANSCRIPT OF CIVIL HEARINGHELD BEFORE

THE HONORABLE JUDGE NICHOLAS G. GARAUFISUNITED STATES DISTRICT JUDGE

____________________________________________________________

A P P E A R A N C E S

For Plaintiff United Michael J. Goldberger, Esq.States of America United States Attorney's Officein Case No. 13-CV-4165: Eastern District of New York,

271 Cadman Plaza EastBrooklyn, New York 11201718-254-6052

-and-Eliza Dermody, Esq.United States Department of Justice950 Pennsylvania Avenue, NW - NYA,Washington, DC 20530202-305-0463

(Appearances continued on next page)

COURT REPORTER: Annette M. Montalvo, CSR, RDR, CRROfficial Court Reporter, USDC-EDNYOffice: 718-804-2711

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APPEARANCES: (Cont'd)

For the Defendant Matthew J. Lawson, Esq.State of New York Jason Brown, Esq.in Case No. 13-CV-4165 Kent T. Stauffer, Esq.and the Defendants Office of the Attorney General,in Case No. 13-CV-4166: Eric T. Schneiderman

120 BroadwayNew York, New York 10271212-416-8733

For the Plaintiff Class Andrew Gordon, Esq.in Case No. 13-CV-4166: Geoffrey R. Chepiga, Esq.

Robert J. O'Loughlin, Esq.Paul, Weiss, Rifkind,Wharton & Garrison LLP1285 Avenue of the AmericasNew York, New York 10019212-373-3343

-and-Clifford H. Zucker, Esq.Nina Loewenstein, Esq.Disability Advocates, Inc.Five Clinton SquareAlbany, New York 12207518-432-7861

-and-Jennifer Ellen Mathis, Esq.Bazelon Center for Mental Health Law1105 15th Street, NW, Suite 1212Washington, DC 20005202-467-5730

-and-Jota Borgmann, Esq.MFY Legal Services Incorporated299 Broadway, 4th FloorNew York, New York 10007212-417-3717

-and-Roberta L. Mueller, Esq.New York Lawyers for thePublic Interest151 West 30th StreetNew York, New York 10001212-244-4664

-and-(Appearances continued...)

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APPEARANCES: (Cont'd)

Jeffrey Richard Senter, Esq.Urban Justice Center123 William Street, Floor 16New York, New York 10038646-602-5671

Special Master Clarence J. Sundram, Esq.in Case No. 13-CV-4165 26 Abbey Roadand Interested Party Delmar, New York 12054in Case No. 13-CV-4166: 518-527-1918

ALSO PRESENT:Robert L. Begleiter, Esq., Constantine Cannon LLPHoward A. Zucker, M.D., J.D.,

Commissioner of Health for the State of New YorkFaith Masterson, Paralegal,

Paul, Weiss, Rifkind, Wharton & Garrison, LLPAlphonso B. David, Esq.Michael Bass, Esq.Paul FrancisAnn Marie SullivanMark Noordsy

Proceedings reported by machine shorthand, transcript producedby computer-aided transcription.____________________________________________________________

Court Reporter: Annette M. Montalvo, CSR, RDR, CRROfficial Court ReporterUnited States Courthouse, Room N375225 Cadman Plaza EastBrooklyn, New York 11201718-804-2711

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Lisa Schmid, CCR, RMROfficial Court Reporter

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(Open court.)

COURTROOM DEPUTY: All rise.

THE COURT: Please be seated in the back. Everyone

at the tables may stand.

COURTROOM DEPUTY: Civil cause for a Hearing.

Counsel, please state your appearances.

MR. GOLDBERGER: Good morning, Your Honor.

Michael Goldberger, Assistant United States Attorney, for

the United States.

MS. DERMODY: Good morning, Your Honor. Eliza

Dermody from the Department of Justice.

MR. ZUCKER: Good morning. Cliff Zucker,

Disability Rights of New York, for the plaintiff class.

MR. SENTER: Jeff Senter for the Urban Justice

Center, for the plaintiff class.

MS. MATHIS: Jennifer Mathis, Bazelon Center for

Mental Health Law, for the plaintiff class.

MS. MUELLER: Roberta Mueller, New York Lawyers

for the Public Interest, for the plaintiff class.

MS. MASTERSON: Faith Masterson. I'm a paralegal

at Paul Weiss.

MR. O'LOUGHLIN: Robert O'Loughlin from Paul

Weiss, for the plaintiff class.

MS. LOEWENSTEIN: Nina Loewenstein, Disability

Rights of New York, for the plaintiff class.

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MS. BORGMANN: Jota Borgmann, MFY Legal Services,

for the plaintiff class.

MR. CHEPIGA: Geoff Chepiga, Paul Weiss, for the

plaintiff class.

MR. GORDON: Andrew Gordon, Your Honor, Paul

Weiss, for the plaintiff class.

THE COURT: Thank you.

MR. LAWSON: Matthew Lawson, Assistant Attorney

General with the New York State Office of the Attorney

General.

MR. BROWN: Jason Brown, Chief Deputy of the New

York Attorney General's office.

MR. STAUFFER: Kent Stauffer, Executive Deputy

Attorney General.

THE COURT: Please be seated.

Let me just start by asking the defense whether it

has received the letter from Mr. Gordon, dated March 21st,

2017, that was filed last night.

MR. BROWN: We have, Your Honor.

THE COURT: And let me ask Mr. Stauffer --

MR. STAUFFER: Yes, Your Honor?

THE COURT: -- you're the only one who's going to

speak for the state. You're it. I'm not hearing from

anybody else today. I don't care. You sent me the

affidavit. You're going to speak for the state, because I

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don't know what's going on.

MR. STAUFFER: Well, respectfully, Your Honor --

THE COURT: Excuse me. I'm not finished.

MR. STAUFFER: Sorry.

THE COURT: I'm going to read to you from the

transcript of the last proceeding, so you have an

understanding of why I'm not going to hear from this

gentleman over here.

But let me start with this. Are the following

people here? Alphonso B. David, is he here?

MR. DAVID: Yes, Your Honor. I'm here.


MR. DAVID: You're welcome.

THE COURT: Paul Francis, is he here?

MR. FRANCIS: Yes, Your Honor.


Keith Starlin, is he here?

MR. BROWN: Because he's a witness, he's outside

the courtroom, Your Honor.

THE COURT: All right.

Howard A. Zucker?

MR. ZUCKER: Yes, Your Honor. I'm here.

THE COURT: Michael Bass?

MR. BASS: Yes, Your Honor.

THE COURT: Ann Marie Sullivan?

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MS. SULLIVAN: Yes, Your Honor.

THE COURT: And Mark Noordsy?

MR. NOORDSY: Yes, Your Honor.


I think the best place to start is at the

beginning. I don't quite understand how we've gotten where

we are today. I also see that the Solicitor General is

here. She was here at the beginning, too.

I welcome you, ma'am.

The State Attorney General has made a motion to

withdraw as counsel in this case, correct?

MR. STAUFFER: Yes. Correct, Your Honor.

THE COURT: In order to place the Attorney

General's motion to withdraw as counsel in its proper

context, I believe it would be useful for me to briefly

document the long history of this complex litigation,

particularly in view of the fact that there are so many

quote, players, in this situation who weren't here at the

beginning or the middle.

In 2002, the New York Times featured a series of

articles on the deplorable condition in many New York City

adult homes. The articles documented the dangerously poor

care afforded residents, the vermin and squalor present in

the facilities and the mismanagement of residents' funds

entrusted to administrators. The investigative journalist

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who wrote these stories, Clifford J. Levy, was awarded a

Pulitzer Prize in 2003 for reporting on this subject.

In 2003, Disability Advocates, Inc. brought a suit

to vindicate the rights of individuals with mental illness

residing in or at risk of entry into New York City adult

homes. The lawsuit named as defendants the governor of New

York, the New York Department of Health and the New York

Office of Mental Health, and the commissioners of DOH and

OMH, whom I will refer to collectively as the "state

defendants" or "the state."

The Office of the Attorney General began its

representation of the state defendants in 2003, when this

lawsuit was filed. Following years of litigation, including

extensive discovery, multiple expert reports and a five-week

bench trial, during which 29 witnesses testified, more than

300 exhibits were admitted into evidence and the excerpts

from the deposition transcripts of 23 additional witnesses

were entered into the record.

The Court issued a 210-page Memorandum and Order,

setting forth findings of fact and conclusions of law. The

Court found that the state had violated the Americans With

Disabilities Act of 1990 and the Rehabilitation Act by

failing to serve adult home residents in the most integrated

setting appropriate for their needs.

The Court gave the state an opportunity to submit

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a proposed remedy to address these civil rights violations.

Finding the state's proposal to be egregiously deficient,

the Court subsequently adopted the plaintiff's remedial

proposal with minor modification and over the state's

objections, appointed a court monitor to oversee the

implementation of the remedy.

The state appealed, and in April 2012, the Second

Circuit vacated the Court's decision after determining that

Disabilities Advocates, Inc. lacked associational standing.

The Second Circuit noted, however, that the United States

would have standing to sue the defendants on the same

underlying claims, should it choose to pursue the matter.

The Court of Appeals expected that should the

United States or individual plaintiffs with standing refile

the action, the undersigned -- meaning this Court -- would

preside over that new case, noting the following in its

decision: Quote, we are not unsympathetic to the concern

that our disposition will delay the resolution of this

controversy and impose substantial burdens and transaction

costs on the parties, their counsel and the courts. Should

that situation arise, we are confident that the experienced

and able district judge, as a consequence of his familiarity

with the prior proceedings, can devise a way to lessen those

burdens and facilitate an appropriate, efficient

disposition, end quote.

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On July 23, 2013, the United States filed an

enforcement action against the state of New York for failing

to provide individuals with mental illness residential

opportunities in the, quote, most integrated setting, end

quote, suited to their needs as required by the Title II of

the Americans With Disabilities Act of 1990, Section 504,

and Section 504 of the Rehabilitation Act, and their

implementing regulations as interpreted in Olmstead v. LC,

527 US 581, 1999.

A group of adult home residents simultaneously

filed an action on behalf of themselves in a class of

individuals with serious mental illness who reside in 23,

quote, impacted adult homes, end quote, in New York City,

against the governor of New York, DOH, OMH, and the

commissioners of each of these agencies, seeking injunctive

and declaratory relief on the same grounds. The two cases

were consolidated and assigned to this Court. The Attorney

General of the state of New York represents the state

defendants in this consolidated action. The parties

immediately filed a joint proposed Stipulation and Order of

Settlement.

On November 20, 2013, the Court certified the

class as, quote, all individuals with serious mental illness

who reside in impacted adult homes in New York City with a

certified capacity of 120 or more beds and a mental health

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census of 25 percent or more of the resident population or

25 persons, whichever is less, end quote.

On March 17th, 2014, after ordering two separate

revisions of the agreement and conducting a fairness

hearing, the Court "so ordered" the amended Stipulation and

Order of Settlement. The Attorney General signed the

settlement agreement on behalf of the state defendants, and

has since represented the state defendants in their

implementation of the settlement agreement.

Clarence Sundram, an experienced disability rights

advocate, was appointed to serve as the independent

reviewer, and is tasked with monitoring implementation of

the settlement agreement.

At the fairness hearing, the Court heard from

numerous individuals, and I'd like to read for your benefit,

for those of you who were not present at that hearing, the

statement of one of the speakers.

Speaker Number 117, quote, I'd like to speak about

what I miss the most about living on my own. I miss my

recliner where I used to sit in Sunnyside, Queens. I would

sit, watch my TV, eat Chinese food takeout and sit with my

cats.

I miss cooking. I miss skirt steak in my toaster

oven. I miss hot chocolate in my microwave. I miss the

spoonful of ice cream every now and then from my big fridge

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that I bought for myself. I miss so many things.

I miss cut flowers that I could afford to buy

every now and them. There's so many things that I miss.

And it's something that I want again. With support, I think

I can do that. I had a rent-stabilized apartment and lost

it in the fire. And that led me to being where I am, and I

feel stuck. And with support, I think I can go back to

being where I was. And I'd like the opportunity to do that.

Thank you.

And there were many other statements of that type

during the fairness hearing.

Now, under the settlement agreement, the state

agreed to take various steps to assist adult home residents

who desire to transition out of impacted adult homes and

into supported housing in the community. The state must

provide a minimum of 2000 supported housing units for

current adult home residents and any additional units that

are necessary.

Adult home residents have the opportunity to

undergo individual assessments to evaluate their eligibility

for supported housing, identify housing in the most

integrated setting appropriate for their needs, and

determine what mental health services they would need in

this setting.

To help adult home residents make an informed

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decision about whether to move, supported housing providers

conduct, quote, in-reach, unquote, to explain the benefits

of supported housing, detail the options available and

address any concerns. Eligible residents who choose to

transition into supported housing or other housing that is

appropriate to their needs receive services to aid with

their move and transition into the community. The

settlement agreement does not require any individual to move

or undergo assessment against his or her will.

The settlement contains certain milestones that

the state must meet. By the end of the fourth year of the

agreement, the state must have assessed at least 2500 adult

home residents and if appropriate, have transitioned those

who desire into supported housing. By the end of year five,

the state must provide all class members the opportunity to

move into supported housing.

The deadline for the four-year milestone is fast

approaching in July 2017, and the state is far from hitting

its numbers. According to the last quarterly report filed

by the state on December 22nd, 2016, the state had assessed

1,545 class members, and as of the last status conference

held on February 22nd, 2017, the state had transitioned only

472 residents from impacted adult homes to supported

housing.

And I'm advised that -- by Mr. Sundram, that

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number is approaching five hundred, as of today.

The settlement agreement also references certain

regulations that were promulgated by the Department of

Health and the Office of Mental Health in 2013, after the

Second Circuit vacated the decision in the DAI 1 case.

And in advance of the United States and the class

plaintiffs filing the second iteration of the case in DAI 2,

the regulations provide that: One, adult homes with

certified capacity of 80 or more and a mental health census

of 25 percent or more of the resident population shall not

increase the mental health census of the facility, i.e.,

shall not admit additional individuals with serious mental

illness; and two, psychiatric inpatient units of hospitals

and freestanding psychiatric facilities licensed by the

Office of Mental Health shall not discharge individuals with

serious mentality illness to adult homes whose mental health

census is 25 percent or more.

Pursuant to the settlement agreement, if

enforcement of these regulations is enjoined by a Court or a

Court finds the regulations to be invalid, the parties must

meet and confer in good faith at least three times during a

period of 120 days after such court order, to determine

appropriate modifications to the settlement agreement. If

at the end of the 120-day period, the parties cannot agree

on modifications to the settlement agreement, the agreement

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becomes null and void.

Several actions have been filed challenging the

regulations, including Residents and Families United to Save

Our Adult Homes versus Zucker, which is before this Court,

which was removed to this Court, and also the following

state court actions: Oceanview Home For Adults, Inc. V.

Zucker, in Albany; Hedgewood Home for Adults v. Zucker in

Dutchess County, and John Doe v. Zucker, in Albany County.

Until recently, the Attorney General represented

the state defendants in these actions. It is my

understanding that the Attorney General has withdrawn from

its representation of the state agencies in the state court

cases.

Now, that's out of my control, but the Attorney

General is still counsel for the state defendants in this

case before me, including residents and families. One of

these state court actions is of particular importance to

today's hearing, John Doe v. Zucker.

John Doe, an individual with serious mental

illness and a former resident of the Oceanview Manor Adult

Home, transitioned to supported housing and now wishes to

return to the adult home. Doe filed an action against

Howard Zucker, M.D., in his official capacity as

Commissioner of the Department of Health, and Ann Marie

Sullivan, M.D., in her Official Capacity as Commissioner of

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the Office of Mental Health, challenging the regulations

which limit admission of individuals with serious mental

illness into certain adult homes.

On February 14th, 2017, Doe filed a motion for a

preliminary injunction, requesting that the state court

enjoin enforcement of certain regulations which are

referenced in the DAI settlement agreement. Two days later,

on February 16th, 2017, Judge Hartman of the State Supreme

Court in Albany, entered a temporary restraining order

enjoining enforcement of the regulations pending a

determination on the Motion for a Preliminary Injunction.

None of the parties to the John Doe action

informed this Court of the development in the state court at

the time that it occurred; however, on its own initiative,

this Court held a hearing with the DAI parties to discuss

consequences of the TRO on the settlement agreement in the

case that is before this Court.

At the hearing, a representative of the Attorney

General's office informed the Court that the Department of

Health and the Office of Mental Health -- who were

represented by the Attorney General's office at the time of

the hearing before the state judge in Albany -- had

consented to the entry of the Temporary Retraining Order.

Kent T. Stauffer, Executive Deputy Attorney

General for State Counsel, has since submitted a declaration

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which documents the events surrounding the TRO hearing. At

today's hearing, we will examine some of those events more

closely.

Entry of the TRO triggered Section O of the

settlement agreement in this case. Accordingly, the parties

in DAI are now in a 120-day period, where they must meet and

confer in good faith and work to make appropriate

modification to the settlement agreement. This is a

critical time in the present litigation. If the parties do

not reach an agreement on the modifications, the settlement

agreement becomes null and void.

The Court has set a date for a new trial, July

10th, 2017, but is cautiously optimistic that the parties

will come to an agreement, avoiding the need for a trial

which would, in fact, be largely duplicative of the one held

in 2009.

The Department of Health and the Office of Mental

Health consented -- consented to the entry of a

five-month-long temporary restraining order, which put this

settlement agreement in jeopardy and has also prompted the

Attorney General to file a motion to withdraw as counsel for

the state defendants.

With that important background setting the stage

for further steps here today and after today, I'm going to

turn to the plaintiffs, and I'm going to start with Mr.

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Gordon.

MR. GORDON: Thank you, Your Honor.

Let me start by saying why I'm here. As Your

Honor knows, in ten years of litigation, I have not been

here all that often, allowing other more junior people in

our office to handle a lot of the work, but --

THE COURT: Let me just say this. The people who

did the work, who did the trial and have been involved in

this case from Paul Weiss, working pro bono, have done an

excellent job and I've complimented them repeatedly.

And I would say that, generally speaking, until

this turn of events, the attorneys for all the parties have

done a creditable job, but what's happened now is a

completely new situation.

MR. GORDON: Well, that's why I'm here, Your

Honor.

I don't even know how to catalog my outrage. I

mean, whether it's the Court's efforts, Paul Weiss' efforts

over the last ten years, whether it is the fact that it

appears that a federal order of this Court has been ignored,

whether it is the fact that the Department of Health and the

Office of Mental Health -- who are charged with protecting

one of the most vulnerable populations -- appears to be in

cahoots with the adult home industry. I don't even know

where to start, Your Honor.

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And we thought long and hard about submitting that

letter yesterday. I don't take things lightly. In twenty

years of practice, I haven't seen as much as a lot of people

in this room, but I've seen enough. I've never accused an

adversary of misrepresentation. I've never used the words

"fraud on the Court" in a letter, but we have a problem

here, Your Honor. And let me tell you what we know, tell

you what we don't know, and how we think we need to proceed,

longer term.

On Monday, we received a document production from

both Mr. Sherrin, who is one of the defense counsel in the

residents' case and from the state. And I'd like to just

briefly review the chronology of what those documents show,

so you know what we know.

On November 3rd, Mr. Sherrin sent Mr. Bass a

letter. He had already filed the Oceanview case. It's one

of the oddest letters I've ever seen in private practice

because -- and I think Mr. Sherrin admits it -- he says,

while an attorney does not usually telegraph his or her game

plan to opposing counsel, I'm doing so here. And he makes

it clear that his plan is to challenge the regulations by

finding various plaintiffs, including plaintiffs who have

left a home, gone into supported housing and now want to get

back, in bringing actions against the state.

So Your Honor, when you were told last time by the

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state that they were seeing a specific set of facts that the

state was seeing for the first time, Mr. Sherrin had told

the state on November 3rd exactly what he was going to do,

which was to bring actions challenging adult home residents

who had left, had gone into supported housing and had come

back.

By November 6th, three days after receiving this

letter which invited settlement discussions, the state

begins to have settlement discussions with Mr. Sherrin.

From Mr. Sherrin's perspective, the goal was absolutely

clear and quite simple. It was to get rid of the challenge

regs. He made that very clear from day one.

On November 8th, the state entered into a tolling

agreement that was done with the knowledge of the Office of

the Attorney General, who had reviewed that tolling

agreement. So everybody here on the defense side knew

exactly what was going on.

On November 10th, drafts start exchanging,

settlement -- Mr. Sherrin is quite clear again. We need to

remove the regs. From November, December, January, the

drafts are exchanged.

That is always a central premise of those drafts

and Your Honor, it is also clear that Mr. Sherrin and the

state realize they have a problem -- and I say this with all

due respect to you. It's you. They know they need to avoid

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you. Mr. Sherrin, in his letters, says things like, we

can't settle the removed action because we'd have to come to

this Court for approval. Mr. Sherrin implores them to move

faster because they're afraid of pressure that this Court

would put on the state.

So two things are clear, Your Honor, from these

documents: One, they wanted to get rid of the regs and the

state was going along with it; and two, they wanted to get

rid of you and the state was going along with it.

And Your Honor, on December 27th, a settlement

agreement -- and we can show you this later -- was commented

on about -- and emails were exchanged about confirming there

would be no further enforcement of the regs, and the

Metadata for those documents show that the AG reviewed that

draft.

So, Your Honor, I don't know who knows what at the

AG's office, and I don't want accuse anybody who spoke at

the last time, but this notion that this all came as a

shock, you know, to use a bad analogy, it reminds me of

Casablanca, in the scene where one character remarks he's

shocked to see gambling going on here.

Your Honor, from January to February, there's a

gap. I don't know what happened, and we need to find out.

I suspect somebody finally realized that a settlement

agreement wasn't going to get away -- going to make a

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federal consent order go away. We don't have the documents

that show what happened there because the state and Mr.

Sherrin also didn't want to put things in email. And they

meet for lunches and coffees to discuss things. They know

what's going on here and where this is going to lead, but

it's interesting.

On February 14th, it appears the settlement

dialogue has broken down, for whatever reason and Mr.

Sherrin and Mr. Bass arrange for a lunch. And Mr. Sherrin

writes Mr. Bass, "Is it okay if I bring the associate who is

preparing the papers in the lawsuit on February 14th?" And

they meet thereafter. Mr. Bass says, "Sure. Why not?"

On February 15th -- February 15th -- that was a

Friday. On that Monday, the TRO is filed at 11:16, the

state gets served. So the state knew -- because I assume

when they said, who is preparing the papers, the state knew

that TRO was going to be filed.

On February 16th, by 9:23, the emails that have

been put in front of Your Honor about the settlement and

agreement to the TRO have been exchanged and by 10:30, Judge

Hartman has entered the TRO for five months.

But Your Honor, you were told at the hearing by

Mr. Bass last time that, "I do not think it was contemplated

by any of the attorneys in that room" -- meaning the

courtroom -- "that this particular order on this very

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specific case was going to throw out this settlement."

Your Honor, since November, the whole point of the

interaction between Mr. Sherrin and the state was to get rid

of the regs which are obviously a crucial component of the

settlement. It was the whole game plan, Your Honor.

So that's what we know. And that's bad enough,

but obviously, it raises some real questions in our mind,

Your Honor, about the extent of the collusion, the extent to

which parties were evading the consent judgment, the extent

to which misrepresentations have been made to this Court,

whether or not a fraud on this Court has been perpetrated.

We are really quite concerned, Your Honor. And so, let me

tell you our proposal, to what end, where we think we should

go.

Well, I know Your Honor wants to get some

testimony today, and I don't want to get in the way of that.

We feel on the plaintiff's side, for the class, that we need

more discovery. We have only received documents from two

custodians, Mr. Bass and Mr. Zahn letter. That production

is clearly incomplete, because Mr. Sherrin, who we also

subpoenaed, has produced documents that the state has not

produced.

We don't believe that only two custodians at the

state have responsive documents. We would like to know more

about who's been involved, who has documents, whether the --

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what extent the Office of Attorney General had knowledge of

what was going on, the governor's office. We have been

promised a privilege log. We have not received it yet. We

have questions about, given the facts and circumstances of

this case, whether the state could even inappropriately

assert privilege.

And we would like depositions, Your Honor.

Cross-examination today is not the best place to conduct a

deposition. Quite frankly, it would prolong and waste your

time and we would like to conduct real depositions of quite

a number of people.

And what we would propose is 30 to 45 days of that

discovery, that Your Honor would set a May hearing, and that

we would come back, Your Honor, and if the facts play out

the way the tip of the iceberg that we have indicate they

are going to play out, we're going to ask you to strike

Section O because that section was not put in there so the

state could collusively enter into a TRO to get rid of a

federal consent judgment.

And I believe, Your Honor -- we believe, Your

Honor, that you have the equitable powers to do so. You

have the ability to do so, given this is a federal consent

order. You have the ability to do so, given the breach, the

clear breach of this consent order. And that is what we

propose to do.

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And let me just close, Your Honor, by saying I

think oftentimes, you know, lawyers forget there are real

people here and I'm glad Your Honor read the quote you read.

There are real people here, Your Honor. There are people

who have been waiting for years to get out of these adult

homes and we have been negotiating in good faith with the

state under this -- what turns out I think semi-false

premise that the state actually cared that these people were

in the adult homes.

And we have been negotiating and we have been

hearing about how hard it is to transition people and move

people and this and that, and we've accepted that. It's the

state. When they tell you something, I don't know. I don't

view them as just another private litigant.

But it turns out since November, while the state

has been having negotiations with us, they have been in a

scheme with Mr. Sherrin to jettison the regulations,

jettison the settlement agreement and totally ignore the

class of people that they're charged with protecting. And I

think we should all remember before we go forward today that

these are very real people with very real issues.

So, Your Honor, that's our proposal for a way to

go forward, and we hope Your Honor would schedule a, you

know, a mid-May hearing. I think, quite honestly, Your

Honor, if we're going to get this done in 30 to 45 days, we

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may need a special master appointed because the state has --

took us from March 2nd until this past Monday to get

documents. I mean, you know, I'm just not really ready to

twist myself up in a pretzel to get the state to do what it

should do, given that it's a litigant in federal court.

Thank you.

MR. GOLDBERGER: Your Honor, on behalf of the

United States, we would echo much of what Mr. Gordon just

said. I think it's quite clear that there has been a lot

going on that has not been disclosed to this Court, has not

been disclosed to the parties who have negotiated in good

faith or attempted to negotiate with the state around

various issues, to get done what needs to be done for the

people in the adult homes.

The critical point I think that I want to pick up

on from what Mr. Gordon just said is that there have been

all of these negotiations. We have been negotiating a

variety of things with the state for a long time and we have

been before this Court most recently in February, and we

have represented to the Court before that that the parties

had come to some conclusion jointly, that we were in a place

where the existing system was not working to transition

people into the adult homes -- out of the adult homes,

excuse me. And that there needed to be structural reform of

the process.

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And we were told by the state in January and we

represented that to the Court in January, that we were in a

place where the parties really were going to get together

and combine their efforts and combine their collective

intelligence to try to work something out, so that we could,

in fact, expedite and accelerate the process of

transitioning people into the adult homes. The state was

essentially acknowledging that it was failing in its efforts

and failing in its obligations under the agreement.

And yet when faced with an attack on the

regulations which are a critical part -- from the state's

perspective, a critical part of this agreement because it

closed the front door to the adult homes, rather than

defending this consent judgment, rather than saying to the

Court and to the world at large, we are standing up for this

consent judgment. We are standing up for what is right and

what is true and what is in that consent judgment, what we

have agreed to, the state seems to have done something else.

As Mr. Gordon points out, we don't have all the

facts yet. We certainly need to collect them fully. But if

at the end of the day, the facts continue to play out the

way that Mr. Gordon's letter suggests, the way that the

facts seem to indicate from the discovery that that have

received, the relief that Mr. Gordon is suggesting --

striking Section O -- is the appropriate relief here because

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the state can't have it both ways, Your Honor. It cannot

represent to the world that it is trying to do good and then

undermine that very good.

THE COURT: Mr. Stauffer?

MR. STAUFFER: Your Honor, first, may I just make

an application that Mr. Brown be permitted to address this

issue? He is a direct report to the Attorney General. The

Attorney General has asked him to address these issues

directly. I report to him.

THE COURT: That's fine.

MR. STAUFFER: And he's prepared to do it.

THE COURT: But I'm also interested in knowing

about your -- in light of what has been learned, your

affirmation, which would appear to be, if nothing else,

incomplete, as to the activity of the Attorney General's

office in connection with these discussions with Mr.

Sherrin, who represents -- and has forever during this

litigation -- the nursing home operators, who are synonymous

at least in the Court's mind with the adult home operators

in their interests.

Mr. Brown, welcome, sir. Thank you.

MR. BROWN: I'll follow the example. I'm used to

speaking from here, but --

THE COURT: Please.

MR. BROWN: Jason Brown. I'm the Chief Deputy of

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the New York Attorney General's office, as Mr. Stauffer

has --

THE COURT: Who did you replace?

MR. BROWN: Harlan Levy. I'm sorry, Your Honor.

Harlan Levy.

THE COURT: A distant memory, I take it?

MR. BROWN: Yeah. Not a distant memory, but as I

always say, they lost about a foot when I came in --

THE COURT: A little more. Go ahead.

MR. BROWN: -- when I did replace Mr. Levy. And

Mr. Schneiderman did ask me to be here today.

THE COURT: All right.

MR. BROWN: Let me start by saying we are very

much here between a rock and a hard place and let me start

with a point that you raised with Mr. Stauffer at the outset

about his declaration being incomplete.

There's a reason for that, Your Honor. We have an

attorney/client privilege that is held, as the Court knows,

by the state, not by us. We do not have the unilateral

authority to waive that privilege and to disclose to the

Court facts that may be relevant to those proceedings.

THE COURT: Would you prefer to have the parties

involved disclose them to a grand jury? Because that's

where we're headed here.

MR. BROWN: I completely understand, Your Honor,

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which is why we have a direct and irreconcilable conflict

with the state.

We did not -- we did not make the motion to

withdraw as counsel lightly. We represent the state in

thousands of cases. This is a highly unusual, extremely

problematic case, for the reasons that Mr. Stauffer's

declaration --

THE COURT: Well, why wasn't I told about this on

January 18th that you wanted to withdraw or February 22nd?

Why are we sitting in March, after the disclosure of the --

some limited discovery with a situation where your office

has been engaged or peripherally engaged in what could be

described as a conspiracy to up-end a settlement which the

governor took credit for when it was issued. All right? As

something that he wanted, that your client wanted? Why are

we doing this in March? And why wasn't I being told about

it in January or before January?

I don't understand that. You could have made your

application a long time ago, sir, and you didn't. So don't

tell me about your obligations. You have a preliminary,

primary and essential obligation to this Court that you

shouldn't be putting your assistants in a position to tell

the Court incomplete statements or possibly erroneous

statements. That's your obligation.

And the buck stops with Mr. Schneiderman. Maybe

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he should be spending more time working on his day job and

not issuing press releases.

MR. BROWN: We totally understand the Court's

frustration.

THE COURT: No, you don't understand it. I've

been doing this case since 2003. These people, these four

thousand people at any one given moment have rights. The

state fought this case with your help -- your office's

help -- and got the Second Circuit to reverse this Court on

Article III standing. You didn't come back and say, well,

you know, the facts of the case are such, we want to resolve

the case on a settlement.

Now, you weren't in the Attorney General's office.

Mr. Schneiderman wasn't there, but Ms. Underwood was there.

She's in the courtroom today. She went up to the Second

Circuit -- which is the state's right.

And then we came back. Years go by. Years go by.

And now I find that there's some sort of a deal, allegedly,

between the Department of Health and the Office of Mental

Health and the nursing home industry. That's how it

appears. And we're going to find out exactly what the deal

is because if there is deal, I would consider it a fraud on

the Court.

MR. BROWN: And that's where our conflict comes

in. I totally understand Mr. Gordon saying --

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THE COURT: Well, I'm not going allow the governor

to decide who the lawyer is for the state of New York, where

the lawyer he chose has a website that indicates that the

firm represents 150 nursing homes. It doesn't pass the

laugh test.

MR. BROWN: A practical question, Your Honor, what

do we do about the irreconcilable conflict about the

attorney/client privilege here? It's our not our privilege.

We're prepared to waive it. We're prepared to say that

Section O has not been triggered by this TRO. We're

prepared to say many things that our client very well may

not be prepared to say.

THE COURT: Why don't you sit down for a minute

while I talk to the Commissioner of Health?

Sir, why don't you come on up here. I want to

talk to you.

COMMISSIONER ZUCKER: (Complies.)

THE COURT: I'm not going to put you under oath

today. You can do that later.

COMMISSIONER ZUCKER: Okay.

THE COURT: But what I am going to do is indicate

to you that I've learned certain things about previous

individuals who have been placed in supported housing under

this settlement, and I'm going to give you a directive.

Hi. You are?

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MR. BEGLEITER: I am Robert Begleiter. I have

been asked to represent the commissioners today in front of

Your Honor.

THE COURT: Oh, thank you.

MR. BEGLEITER: You're welcome.

THE COURT: Who asked you?

MR. BEGLEITER: I've been asked by the

commissioners, by the state of New York.

THE COURT: Welcome.

MR. BEGLEITER: In their personal capacity only.

THE COURT: Okay.

MR. BEGLEITER: Excuse me, their official capacity

only.


MR. BEGLEITER: And I'm not representing the

departments.

THE COURT: That's fine. I just need to know.

MR. GORDON: You need a chair?

THE COURT: Let him stand there. He knows how to

stand. Mr. Begleiter is always well received in our court.

MR. BEGLEITER: Thank you. I hope it remains that

way.

(Continued on the next page.)

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THE COURT: Just a moment, sir. I wanted to ask

Mr. Sundram.

Mr. Sundram, are you aware of any cases of members

of the class who went through the process of being placed in

supported housing, who have been permitted to return to the

adult homes where they had resided prior to being placed in

supported housing?

MR. SUNDRAM: Yes, Your Honor. In the course of

preparation of my annual report to the court, I requested

information from the New York State Department of Health about

the individuals who had left an adult home, had gone to

supported housing, and subsequently returned to the adult

home, either the one they were in or another one, over a

period of time. There's been eight such individuals that I

know of, as of December.

THE COURT: All right. Thank you very much.

Commissioner, it would appear that exceptions have

been made to the regulations by your department and the Office

of Mental Health permitting a handful of adult home members of

the class who have transitioned to supported house, who found

it difficult to make the adjustment, that they were permitted

to return to their adult home so that they could not feel that

they were under some stress. And, of course, these are people

with mental illness. So our job, collectively, is to do

what's best for them.

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Does your agency have any objection to this John Doe

returning to the -- which one is it?

MR. GORDON: Oceanview Manor.

THE COURT: Oceanview Manor?

COMMISSIONER ZUCKER: The department, obviously,

would do whatever's best for individuals, whether they are out

in the community or back at the home. And that's where our

goal is, to make sure that those who are served in the best

capacity as possible.

THE COURT: So we don't know who this person is,

it's a John Doe. But I take it from what you said, reading

between the lines, which I must do under the circumstances

because you didn't give me a direct answer, that the

department would not have an objection in an appropriate case.

COMMISSIONER ZUCKER: Right.

THE COURT: Well, I am exercising my equitable

powers, equitable supervisory powers in this case to direct

you to make that accommodation with respect to John Doe. And

I am also directing the State Attorney General to advise the

court in Albany that this matter has been resolved and that

the case is moot. And the TRO will therefore be rescinded

because there is no case involving this John Doe once that

person is permitted to return. And then we can get on with

the rest of this.

And the purpose of all this is not to embarrass the

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commissioners or the State. The purpose of what we're going

to do now, next, is to get to the bottom of what Mr. Gordon

has sketched in for us. So I want you to understand the Court

appreciates that you are here, and that your fellow

commissioner is here, and the counsel for the governor is

here, but you have to understand that the authority of this

Court cannot be lightly breached, especially in a situation

where we have been attempting since 2003 to help people who

cannot help themselves.

That's why we have federal courts, that's why we

have judges who serve for life. I am trying to outlive this

case, and the State is not making it easy. But the message

that has to go back, I think to Albany, is whatever has

happened, it needs to be fixed in a way that doesn't create

the clear impression that there's a -- there is a -- there's

an atmosphere in Albany that you can sort of jiggle the

system, use the courts in such a way that the people who are

being protected by this settlement are going to be undermined.

This is about them. That's why I read that statement.

You have many things on your plate, as does your

fellow commissioner. But I am asking you, I am asking

Commissioner Sullivan, and I am asking the Governor through

Mr. David, to put the politics of the State capitol aside and

to deal with the really difficult lives that these people have

to live.

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If I sound dramatic, it is because it is dramatic.

It's about them. It's about 4,000 people. And I don't want

to micromanage your work or the work of your staff, many of

whom have done an excellent job. But I will not allow the

kind of political, legal activity that is going on in this

case behind my back and the behind the backs of the plaintiffs

to continue. So I am asking you to make this your priority.

I doubt that you have been advised on every last detail what's

been going on, I'm not asking you to answer that question.

But it's got to stop.

And as far as the law firm that the State has

identified to be substituted for the Attorney General, I am

holding your motion in abeyance and the Attorney General's

motion.

On their web site they say they represent 150

nursing homes. Where did they come from? To represent the

interests of the State Department of Health and the State

Office of Mental Health. I doubt that's ever going to happen

in this court. Ever, ever, ever. You've got to do better

than that.

Thank you for coming in. You may be seated.

COMMISSIONER ZUCKER: Thank you.

MR. BEGLEITER: Can I speak for a moment, Your

Honor?

THE COURT: Yes, sure.

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MR. BEGLEITER: I have been in this case since

Friday, which is a lot less than everybody else has been, but

maybe I can add some value and clear some air.

You can get a commitment, Your Honor, if you wished

it today, from the commissioners. It is more than a

commitment, it's already happened, that they will continue

with the core relief in the settlement. In other words,

assessments, in-reaches, and transitionings for those who want

it --

THE COURT: In-reaches.

MR. BEGLEITER: -- and they will do it, they will do

it even after the 120 days. In other words, there's no

intention to stop that. I hope that makes Your Honor feel

there's some sort of receptivity on the part of the

commissioners and the people I represent today in their

official capacities. I want that out in the open. There's no

question about that. This will continue, I have been told. I

don't know -- again, I don't know what impact that has on

Your Honor, but I think it is something that is important for

the very group, for the class that you are talking about.

As far as Your Honor's order regarding the return

on -- using your equitable powers, I have no authority to

agree or disagree with that. I think the State may want to

submit some kind of -- I don't know what it would be, I don't

know what the position's going to be, but they may want to

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submit something on that. It won't be from me.

THE COURT: Well --

MR. BEGLEITER: There's counsel.

THE COURT: Ms. Underwood's here.

MR. BEGLEITER: That's true.

THE COURT: Mr. Brown's here. But my view is that I

have certain equitable powers to oversee this litigation, and

if this can be done in such a way that the case in Albany is

moot, the TRO is dissolved, that would be the best way to

handle it, since we're talking about a human being, I think,

although I don't have a name to put to a face, who would be

benefitted by returning, according to Mr. Sherrin, by

returning to an adult home. And I don't think that the

situation for one individual should implicate the entire

settlement for 4,000 people. And I am sure that even though

there was no transcript kept of the proceeding before the

judge in Albany, which is interesting, and the judge was

apparently never told about this litigation, which is

interesting, and the Attorney General was in the room when the

TRO was issued, which is interesting, it wouldn't have been a

violation of the lawyer-client privilege to indicate that the

State of New York is in a litigation in New York City before a

federal court, with a settlement, so at least the state judge

could ask questions about what was going on down here. That

didn't happen apparently. What do you think the Court thinks

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when it is all like hocus-pocus and here we are? So don't

tell me, please, about whether they should allow this

individual to go back to the adult home.

MR. BEGLEITER: You haven't heard that argument from

me, Your Honor. All I'm saying --

THE COURT: No, but the implication is, maybe yes

and maybe no. You don't know, so don't say it. I told --

MR. BEGLEITER: All I'm saying is --

THE COURT: Excuse me.

MR. BEGLEITER: Okay.

THE COURT: I told your client what to do.

MR. BEGLEITER: Right.

THE COURT: I told him that it was in my equitable

powers, overseeing this case, if the State of New York wants

to bar this individual who wants to go back to the adult home

from the adult home, in order to preserve a TRO that lasts

from February until July -- you know, in this court, in the

federal court, you know how long a TRO can last? You know.

MR. BEGLEITER: I know.

THE COURT: How long? Tell me.

MR. BEGLEITER: It can last up to 20 days.

THE COURT: Yeah.

MR. BEGLEITER: That's right. Ten days plus ten

days.

THE COURT: So how does a state judge on consent

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impose a TRO for months and months and months? Because the

parties agreed to it. Why should the judge have any concern?

There may be reasons for it. They don't want to litigate it.

They just want to impose it. And the Assistant Attorney

General was in the room. The Assistant Attorney General,

who's here, rather, Mr. Bass from your department, was in the

room.

MR. BEGLEITER: Correct. They were in the room with

the judge.

THE COURT: And I want to know what was going on in

the other rooms, and I want the Paul Weiss firm and the other

lawyers here to dig into it. Because if there are going to be

sanctions, I will be presiding at that trial.

MR. BEGLEITER: Your Honor, I just wanted to say

that my consent does not imply -- my silence does not imply

consent.

THE COURT: I understand that.

MR. BEGLEITER: And the other thing is, you're quite

right. There are --

THE COURT: You have been doing this since Friday.

I have been doing it since 2003.

MR. BEGLEITER: That's right.

THE COURT: That's the difference between the two of

us.

MR. BEGLEITER: And the other thing is, I will say,

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is that the witnesses are prepared to give an explanation

today, but I understand from the Paul Weiss lawyer, he doesn't

want to do it.

THE COURT: No, I think it would be better to hold

off on that, and I don't want to waste everybody's time, but

we'll decide at a later time who should testify at a hearing,

if we have a hearing.


THE COURT: You know, there is another way of

dealing with this, for the commissioner's and the Governor's

office, is to find a solution.

MR. BEGLEITER: That's right.

THE COURT: Is to find a solution.

MR. BEGLEITER: And there's --

THE COURT: And I think that the parties -- you

know, we already had a solution. It may not have moved

quickly, but we had a solution. And the question is, has

there been good faith in implementing the solution. So we

will find out about that. Thank you.

MR. BEGLEITER: If I may, Your Honor, there's a

conference -- there's a meet and confer this afternoon, a

settlement conference this afternoon, and the hope is that

some progress can be made in getting to a final solution,

getting to a solution here.

THE COURT: I am going to authorize discovery. I

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don't care that you are going to have a meeting. Meetings can

be worthless, if there's bad faith. I am not interested in

people getting together, although apparently there are people

in the Attorney General's office and the Department of Health

who like to have lunch to talk about my case and how to

undermine it. So let them have their lunches in Albany, but

they have to come down here and explain to me what's going on.

MR. BEGLEITER: I understand.


MR. BEGLEITER: I assume that the Attorney General

remains as counsel while the motion is being held in abeyance?

THE COURT: I just said, I am not going to take any

action on this at the present time.

MR. GOLDBERGER: Your Honor, if I may, for a moment.


MR. GOLDBERGER: Recognizing the limitations that

Mr. Begleiter has on his representation with Mr. Zucker in

connection with his official capacity, I want to put what

Mr. Begleiter said together with something that Mr. Brown

said, as a possible, at least temporary, fix for some of the

problems that we're facing here today.

If the State is, as Mr. Begleiter represented just

now, truly committed to continuing the process that exists

under the consent, Judge, and as Mr. Brown suggests, the AG's

office is probably willing to find some way to not trigger a

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Section 01, for lack of a better term, than the solution is

right in front of us, Your Honor. We have engaged in good

faith negotiations, we will continue to engage in good faith

negotiations, but if Section 01 were to be rescinded,

Your Honor, and this is not to take anything away from the

need to find out exactly what happened here, but if Section 01

were rescinded by agreement of the parties and order of the

Court, then we would be in a position where we could have good

faith negotiations. It would be a good faith offer by the

State to say to us, "We don't want to undermine this

agreement, we don't want to undermine the judge's consent

order. We want to have a good faith discussion about how we

can make this process better for everyone."

If that were something the State were willing to

consider, I am hearing some indications the State's willing to

continue to do what it's been doing under this consent order,

then that may be a solution.

THE COURT: Your point's been made. This is

something that the parties should discuss. I understand that

the Attorney General has a difficult problem. But the fact of

the matter is, that some of the stuff that has been going on

apparently has involved the Attorney General's office. It is

not that they have clean hands in this situation. And so I

think it is time for the parties to like figure it out. In

the meantime, we're going to have discovery.

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You said you need about six weeks?

MR. GORDON: That would be great, Your Honor. And I

also question Your Honor whether Your Honor wants us running

to this court to deal with issues or whether --

THE COURT: I am going to have you deal with the

magistrate judge, Judge Levy. I tried to reach him this

morning and wasn't able to reach him. He may have been on the

bench. And Judge Levy is assigned. Judge Go had been

assigned, she retired, and so Judge Levy's been assigned, and

I will be talking to him.

Let me give you a date for completion of discovery.

Friday, April 5 -- May 5. I'm sorry. May 5.

MR. GORDON: Your Honor?

THE COURT: Yes.

MR. GORDON: Just to clarify, that is for the

discovery related to this discrete issue --

THE COURT: Yes.

MR. GORDON: -- obviously, with the July trial,

there's a lot of other stuff that needs to happen.

THE COURT: Right. And so that's -- I am glad you

mentioned the July trial. You know, we don't have to have a

July trial if you work this all out. I would much rather do

something else in July.

But I set May 5. And then I am on trial in the

Middle District of Alabama the week of May 8. So we can have

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this -- we can have a hearing here on May 17 at 10:00 a.m. on

the issues that -- whatever the issues are that you wish to

bring to the Court's attention.

MR. GORDON: And, Your Honor, can we take the April

5 conference off in light of this?

THE COURT: You can take that off.

MR. GORDON: Thank you, Your Honor.

THE COURT: And the other thing is that when we have

a trial in July, should we have a trial, all the named

parties, defendant, will be required to sit at this trial.

Because if I have to do this again, the commissioners are

going to do it with me. I am not going to sit here in the

middle of the summer while everybody else is on vacation. So

you're forewarned.

Anything else from the plaintiffs?

MR. GORDON: Your Honor, I hate to keep jumping up,

but while we're here, can we get a very quick date by which

you will order privilege logs to be produced?

THE COURT: What date would you like?

MR. GORDON: I would like in about five minutes,

but, I mean --

THE COURT: Well, I mean, understanding that that's

not reasonable. How about a week from today?

MR. GORDON: A week from today. Thank you.

THE COURT: By 5:00 p.m.

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MR. C. ZUCKER: Your Honor?

THE COURT: Yes, sir.

MR. C. ZUCKER: There is a pending motion regarding

the Elizabeth Jones matter. I don't know if that's gotten

lost with all that's happened here.

THE COURT: Well, I will look at it.

MR. C. ZUCKER: Thank you, Your Honor.

THE COURT: Mr. Brown?

MR. BROWN: Your Honor, at the risk of raising more

issues, I do apologize, but I have to. I have to.

We understand the Court's order to proceed with

discovery, and we will certainly comply in any way that we

can. It doesn't -- and I understand the Court has held in

abeyance our motion to withdraw as counsel, but for the

reasons I articulated before, and I am willing to repeat

again, it's impossible for us, particularly now that the

notion of sanctions has been raised, we are in bed with the

State or somebody, I think there were words to that effect

that one of the parties mentioned.

It's impossible for us both to adequately represent

the State during this discovery process and represent

ourselves. I am telling the Court that there is a direct

irreconcilable conflict, and we don't know what to do about

that.

THE COURT: Right. With regard to the process of

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doing this discovery, if the State defendants want to obtain

counsel -- not the Abrams firm. They're out at this point,

until we have a hearing on whether they're conflicted. But if

there is a law firm somewhere out there that isn't busy in the

lobby of the State Senate and State Assembly, and on the

second floor doing business for the nursing home industry, and

that's where we are right now, then I need to know who it is.

Because I am not going to tolerate a situation where the State

defendants are represented by an entity that represents

parties who have an adverse interest to this settlement.

So if you can find them, Mr. David, I want to know

who they are, and I will let you know whether it's acceptable

to the Court. Certainly you have a right to have counsel for

the agencies.

The other thing I will make very clear is that it's

important that the -- that anybody who may have a problem

based on the evidence that may be divulged about complicity

between the nursing home industry and the State actors, any of

the State actors, that person or persons, they are -- it is

recommended that they consult private counsel.

I am directing the Attorney General to advise the

Court when the issue of the TRO and the rights of Mr. John Doe

to return to the adult home have been resolved. And if they

aren't resolved, or if the State decides to do something else

about it, then we'll take it up in due course.

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Sir?

MR. GORDON: Sorry to keep popping up, Your Honor,

but I just want to put one thing on the record in terms of our

position. If the bringing in of new counsel slows this up by

one minute, because I see already the movie, which is --

THE COURT: No. Let me explain. The purpose of the

new counsel is not the general representation of the State

actors. The purpose of the new counsel is to deal with the

discovery. We're going ahead on July 10. The commissioners

and I are going ahead on July 10, if we need to go ahead on

July 10. But I can't deny the concern of the Attorney General

that based on what's happened thus far, some of which was its

own doing, apparently, by being involved in these discussions

behind the back of the Court, that there may be an

irreconcilable conflict. They'll need their own attorney,

potentially.

MR. GORDON: Yes. I don't disagree with any of

that, Your Honor.

THE COURT: I've never heard of this before.

MR. GORDON: You and I both. But I am concerned

that we're going to hear from --

THE COURT: Oh, no.

MR. GORDON: -- new counsel that the next week for

privilege logs, and the May 17 date, Your Honor, and the

discovery --

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THE COURT: Nothing --

MR. GORDON: I just want to make sure we are full

steam ahead.

THE COURT: I've advised the counsel to the

Governor. He's in the room.

Did you hear me, Mr. David?

MR. DAVID: Yes, Your Honor, I heard you.


MR. DAVID: You're welcome.

THE COURT: It's the best I can do.

MR. BEGLEITER: Your Honor, I want to say something,

so the Court is not misled. As I understand the situation

today, Mr. Doe could return to the nursing home. That is the

impact of the TRO. As I understand it. If I've got it wrong,

then someone should tell me. That's my understanding.

THE COURT: Look. I am not getting into the

weeds --


THE COURT: -- on the TRO. I am just saying that if

Mr. Doe goes back to the nursing home, then there would be no

need to set aside the regulations.

MR. BEGLEITER: Mooted.

THE COURT: It would moot the regulation, it would

moot the injunction in effect. This injunction that was done

without a hearing. Because it went from being a TRO to being

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a preliminary injunction, under State law, the way I remember

it, when I was an Assistant New York State Attorney General.

But normally you need a hearing. You don't just do

it with a wink and a nod. This is not justice. So don't

parse these things. If the commissioner is willing to waive

the regulation --


THE COURT: -- then there's no need for a TRO. The

only thing standing in the way of this person going back was

that there was a regulation that prohibited it. Now there

isn't a problem, is what I am saying.


THE COURT: I think that the Attorney General can

handle that, if the commissioner is willing.

MR. BEGLEITER: Correct.

THE COURT: Is the commissioner willing? You're his

lawyer.

MR. BEGLEITER: This is -- I would have to consult

with him.

THE COURT: Well, go consult with him. We'll wait.


(Short pause.)

THE COURT: Mr. Bass, you wait there. You are not

going anywhere. He's got a lawyer.

MR. BEGLEITER: I have spoken to Commissioner

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Zucker. He has no problem doing that.

THE COURT: Okay. Thank you. Thank you, sir.

There's no conflict on that.

MR. BROWN: Glad to hear it.

THE COURT: Me, too.

Anything else from plaintiffs?

MR. GOLDBERGER: One thing, Your Honor. We have a

date, at this point, of April 1 to report back to the Court

regarding negotiations. All of this that has come up in the

last couple weeks has sort of delayed things a little bit. We

do intend to have a meeting today, so we would like to push

that back a couple weeks, if that's okay with the Court.

THE COURT: As long as Mr. Sundram is a participant,

and as long as I get a prompt report.

MR. GOLDBERGER: Absolutely, Your Honor.


Anything else from the State?

MR. BROWN: No, Your Honor.

THE COURT: Oh, by the way. Let me talk about the

Attorney General's duties as a State elected official. The

Attorney General under State statute is to represent the State

of New York. In the case that the federal government has

brought, they sued the State of New York. There is a real

question about whether the Attorney General can withdraw as

the representative of the sovereign. And I know I have been

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provided with some case law, which is not particularly helpful

to me.

But the fact is that the Attorney General was

elected to be the attorney for the sovereign, and there is an

issue which we may take up later, maybe not, about whether

even if he withdraws as the attorney for the commissioners, or

the governor, or State employees, whether he can relinquish

his responsibility to be the attorney for the sovereign. And

I just wanted to lay that on the table as an issue, because it

may come into play at a later date.

Thank you, everyone. Have a nice day.

(WHEREUPON, at 12:24 p.m., the proceedings were

concluded.)

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